ILLINOIS POLLUTION CONTROL BOARD
March 28, 1974
ENVIRONMENTAL PROTECTION
AGENCY,
)
Complainant,
vs.
PCB 72-114
APEX SMELTING CO.,
INC.,
Responder)t.
Mr.
Kenneth J.
Gumbiner, Assistant Attorney General,
on behalf of
Complainant;
Mr.
James
R. Sneider,
Attorney,
on behalf of Respondent.
OPINION AND ORDER OF THE BOARD (by
Mr. Seaman):
On March 24,
1972,
the Illinois Environmental Protection Agency
filed Complaint against Apex Smelting Company,
Inc., charging
therein
violations
of Sections 9(a)
and 9(b)
of the Environmental Protection
Act and Rule 3—3.111
of the Rules and Regulations Governing the
Control
of Air Pollution.
Public hearings were held
in this matter
on May 3, May 17, June 18, June 19 and October 18,
1973.
The parties
filed their Briefs on January
25,
1974.
By Paragraph B, page
7
of Complainant’s Brief, Complainant
“...admits that
it did not es-
tablish
a
9(a)
case...
.“
The charge that Respondent violated Section
9(a)
is hereby dismissed.
Respondent operates
a secondary aluminum smelting facility
located at 2537 West Taylor Street,
in Chicago, Illinois.
Respondent
recycles used aluminum products and aluminum scrap to produce spe-
cification
ingots.
Production
in calendar year 1972/ totalled approxi-
mately 57 million pounds.
(R.
274).
In
a typical month, approxi-
mately one million pounds
of turnings and borings, two million pounds
of cast and sheet,
three million pounds of segregated sheet, and one
million pounds of ingots and alloys are used
to produce the final
product.
(R.
450).
In addition, fluxing agents are added
to the
process.
Respondent employs four well-type reverberatory furnaces.
(R. 449).
Prior
to charging, the material
is pretreated
to
a degree to
remove
impurities.
The borings and turnings are placed into
a predryer
where oil
is driven off and treated with the use of
an afterburner
device.
The scrap metal
is hand—sorted
prior to charging.
11
—665
—2—
The actual
production of aluminum involves
a number of
steps.
To
a furnace containing
a
‘heel”, or quantity of unre-
moved, molten aluminum, sufficient scrap
is charged
in accordance
with
a “heat plan.”
Various ranges were presented
in the Record
for charging times,
depending on the particular furnace involved.
Respondent’s typical
reverberatory furnace operation starts
with the heat release occurring above
the molten metal.
The
heat of the flame
is
transmitted to the metal
by direct and
indirect radiation.
The molten metal
overflows into the bottom
of the charging well, where the heat of the molten metal
is used
to melt the scrap charge.
The scrap aluminum is melted before
it is added to the main
puddle of molten aluminum.
The gases and other foreign materials
from this melting process are gathered by
a hood over the melting
area.
With each scrap charge Respondent adds approximately 7
by weight of fluxing salt which consists of 47.5
sodium chloride,
47.5
potassium chloride, and 5
sodium aluminum fluoride to
remove non-metallic particles.
This
is followed by “alloying”
or the addition of silicon
hardening agents.
The next step,
“demagging”
involves
the addition
of aluminum fluoride to remove magnesium.
At the end of the
furnace cycle
a mixture
of nitrogen
(85)
and chlorine (15)
is bubbled
through the liquid aluminum for “degassing” purposes. After this
operation,
the furnace is tapped and the aluminum
is formed
in
ingot
molds.
In the course of the hearings, extensive testimony was adduced
by both Complainant and Respondent concerning mathematical
calculations
in
the nature of material
balances, the object being
a showing of
whether Respondent’s operation was
in compliance with Rule 3—3.111
of
the Rules and Regulations Governing the Control
of Air Pollution.
In addition, Complainant attempted to show non—compliance with Rule
3-3.111
by calculations based upon Table 7-8,
Particulate Emission
Factors for Secondary Aluminum Operations,
published by the United
States
Environmental
Protection Agency
in
its Compilation of Air
Pollutant Emission Factors
(see Complainant’s Exhibit #3).
Finally, Respondent’s
Exhibit #5 and
#6 were admitted by
stipulation of the parties.
Respondent’s
Exhibit #5 is
the report
of particulate emission stack tests performed
in September of 1973
by
F.
R.
Kin and Associates,
Inc., retained by Respondent.
Com-
plainant’s representative observed the testing procedure.
Respondent’s
Exhibit #6 is
a Report on
the Efficiency Of A Scrubber For Aluminum
Smelting “Demag” Emission
Control.
This report details the results
of
tests performed on
Respondent’s Venturi
scrubber by the Chicago
Department of Environmental
Control
in August of
1973.
Both report
show Respondent’s operation to be well
within applicable
emission
standards.
Complainant’s Brief
(p.4)
states that
“fajs demonstr~’t~
11
—Ei66
-3-
by Respondent’s Exhibits Nos.
5 and 6, emissions were reduced
to acceptable levels after afterburner and scrubber devices
were installed on the various processes.”
Granting, then,
that Respondent’s operation is now
in
compliance, Complainant alleges that from September 23,
1971
to approximately September of 1973, when the control
devices
became operational, Respondent operated
i.n violation of Rule
3-3.111.
As observed above,
the greater portion of testimony
and exhibits admitted by the parties pertained to material
balance calculations.
On page
7 of
its Brief, Complainant
states ~s follows:
“Since the material balance calculations
themselves contain arguable assumptions, and
since emission factors and stack tests are
a~a.ilableto the Board,
the material
balances,
presented by both sides,
should not he relied
upon in this case.”
Complainant attempted to prove violation of Rule 3-3.111
by application of the USEPA particulate emission factors
cited
above.
Complainants theory
is summarized
on page 4 of its Brief
as follows:
“As stated
in Complainant’s Exhibit No.
3,
p.
7—11,
Table 7-8, emissions from the uncontrolled pro-
duction of secondary aluminum in reverberatory
furnaces are 4.3 lbs/ton.
The allowable emission
rate according to Table
I, Chapter
III of Rule
3—3.111
is
4.1
lbs/ton.
This indicates that no
matter what process weight rate
is employed by
Apex, they will always emit excessive particulates.”
The Board notes,
however, that the comment immediately preceding
Table 7-8
is
as follows:
“Emissions
32
-
Emissions from secondary aluminum
operations include fine particulate matter and
gaseous chlorine.
A large part of the material
charged to
a reverberatory furnace
is low-grade
scrap and chips.
Paint,
dirt, oil, grease and
other contaminants from this scrap cause large
quantities of smoke and fumes
to be discharged.
Even
if the scrap
is
clean,
large surface—to—volume
ratios require the use of more fluxes, which can
cause serious air pollution problems.
Table 7-8
presents particulate emission factors
for secondary
aluminum operations.”
—
667
-4-
Respondent protests that Table 7-8
is not applicable to
its
operation since Respondent affirmatively alleges that the
material
charged to
its furnaces
is not “low-grade” and, further,
that the Complainant failed to prove that said material was
“low-grade.”
This Board has traditionally accorded
to the
findings of AP—42 significant evidential
weight.
However,
the
futility and peril of comparing dissimilar operations
is manifest
particularly when,
as
in the instant case,
the emission rate
predicted by Table 7-8 (4.3 lbs/ton) so closely approximates the
standard of Rule 3-3.111
(4.1 lbs/ton).
Mr. Laxmi
N.
Kesari, one of Complainant’s Environmental
Protection Engineers and Complainant’s chief witness at the
hearings, testified that he visited Respondent’s facility on four
occasions during 1971-72—73.
(R.
41).
Mr.
Kesari
testified
regarding his observations of the devices and procedures employed
by Respondent to remove contaminants from scrap aluminum prior
to
charging.
The direct examination of Mr.
Kesari was,
in pertinent
part,
as
follows:
“Q
I
see.
Were there materials besides aluminum
in that scrap that you observed?
A
Yes.
Q
What types
of materials?
A
Copper, bronze, iron and suc~has paint,
oil.
Q
Is there two classes of materials,
contaminants
then?
A
Yes, metallic and nonmetallic.
Q
I
see.
What were the metallics?
A
Copper,
iron,
bronze,
lead.
Q
Is that all?
A
Well,
there may be some others, too, but those are
what at the time of my visit what
I observed, some.
Q
I
see.
What nonmetallics did you observe?
A
Paint, oii,
in some instances,
some paper, cardboard.
Q
With respect to the metallics, were they removed
prior to smelting?
A
Yes, on this sorting belt.
11
--
~368
—5—
Q
All
the metallics were removed?
A
I can’t say all
but some,
definitely.
It was
manually
hand sorted,
so.
MR. SNEIDER:
Manually and what?
THE WITNESS:
Hand sorted.
MR.
GUMBINER:
Q
Is that the only way they were
removed?
A
From there
it would go to the magnetic removal,
magnetic removal system.
Q
Maybe
it would be easier if you would describe
in
detail
the metallic removal
system, start from the beginning
when the metal comes
in?
MR.
SNEIDER:
Are we referring to what he observed?
MR.
GUMBINER:
Right.
MR.
SNEIDER:
Okay.
THE WITNESS:
The metal, the scrap,
it is started,
the metal
is sorted by hand on the belt and then it goes through
a,
under the crushing where
it has high power magnet which
removes all
iron material, iron present in the scrap, and
then it goes to the crusher.
MR.
GUMBINER:
Q
And then what happens?
A
Then it goes to the furnace.
Q
Does
it
go through another hand sorting operation?
A
After
that,
no.
I
didn’t
recall
it.
Q
In
your
opinion,
would
such
a
system
remove
all
material,
all metallics besides aluminum?
A
Do you mean the magnet?
Which one?
I
am
--
Q
Just answer my question?
A
Will
you
repeat
your
question?
Q
Would
such
a
system
remove
all
metallics
besides
aluminum?
A
No.
11
—669
-6-
Q
How were the nonmetallics removed,
or were they
removed?
A
No.
Q
No what?
/3,
It won’t remove nonmetallics with the magnet.
Q
Did you observe anybody removing nonmetailics?
A
Such as
paper,
cardboard, yes, with the hand sorting
of
it.
Q
Did any of the nonrnetallics go into the furnaces?
A
Yes.
Q
Which ones went into
the furnaces without being
sorted?
A
Some paint, oil
present on the parts.
Q
Is
that all?
A
Yes.
Q
Just paint and oil?
A
Yes.
Q
Paint and oil were the only nonmetallics
that went
into the furnaces,
is that right?
That’s just what you said,
is that right?
A
Yes, and other
-—
Yes, nonmetallics, yes.
Q
Those are the only--
I want to get this clear now.
The only nonmetallics going
into the furnaces were paint and
oil
--
(R.
73—76),
Respondent’s Exhibit #7,
is the 119-page deposition of Re-
spondent’s employee Raymond
A.
Di Gerolomo, employed by Respondent
for 34 years, who testified
in depth
as
to the care that Respondent
gives
in buying clean, high—grade scrap,
sorting out contaminants;
crushing scrap; magnetically separating ferrous metals; cycloning
out dirt;
rejecting extraordinary dirty scrap;
testing scrap for
contaminants;
and only charging
to the furnace
a high-grades
relatively contaminant-free
scrap.
fl
—670
-7-
Mr.
Di Girolamo testified &s
follows:
“Q
What
would
you
describe your
duties
as,
are
these
two separate positions,
Receiving Foreman and Processing
Foreman?
A
No, it’s
part of
the job.
Q
All
right,
will
you
tell
us
whdt
your duties are?
p,
First
the
duties
~
to receive
the material.
After
it is received, we ~
whether it needs processing or
use as
ic
m~
is solid waste we receive and we decide
~c that
point
whether
it
has to be processed when we
receive
it.
So
after
it
is
received,
then
it
is
decided it
has to be processed,
then we take it to our sorting, our
processing
operation.
The
material
is
put
on
a belt
and
spread
quite
evenly;
and then a sorter sorts the material
from the belt,
foreign
material
such
as
zinc, wood, paper or magnesium material
that
would
be
hard to remove from our aluminum alloy.
Then
after they sort that out,
it goes on another conveyor
which brings
it into the crushing operation.
This crusher shreds
it
up to about the size of your
fist or smaller.
It
is then brought up over
a double
screen, the material
goes over the double screen, and from
the double screen
it
takes
out
the small
particles of dirt
or
small
particles
of
metal;
and
then
it goes on
to another
conveyor belt
which
separates
the
iron
from
the
aluminum.
The iron
goes
in one container and the aluminum goes
into another.”
(Respondent’s Exhibit #7,
pp.
3,4).
And,
further:
“Q
And that
is the extent of your duties?
A
Well,
I also inspect the material
as
it comes
in.
I inspect it on
the belt
to
see how bad it
is or how good
it is; and
I also reject-— if the material
doesn’t meet up
to my standards,
I
reject the material
right off the bat.”
(Respondent’s Exhibit
#7,
p.
5).
Similarly, William Scrimminger, Respondent’s plant manager,
described the procedures employed by Respondent prior to charging
to the furnaces, including the use of the borings dryer, afterburner,
settling chamber, crusher,
cyclone, hand sorting,
screening, magnetic
removal,
and outright rejection of material.
(R.
450—52).
ii
—671
-8-
Mr.
Scrimminger testified as follows:
“Q
What
kind
of
treatment
do
you
give
to
the
various
categories
after
receipt
of
the material
has
been,
has taken place at the plant?
A
The ~nringswill
be passed through
a crusher
to break them up, make them free-flowing, thence through
a rotary drum drier ‘~iherethe oil
is burnt off them and
thence over
a screen to rt~ovefines, over a magnetic
separator to remove magnetic
~
thence into a box
for
storage
prior
to
being
charged
~
the
furnaces.
The cast and sheet when received will be loaded
onto a hand sorting belt where large nonmetallic pieces,
nonmetallic paper, wood and plastic may be removed prior
to the hand sorting belt.
On the hand sorting belt,
further plastic and paper will
be picked out by hand
and as many nonaluminum metals
as
is desirable and possi-
ble.
Stainless steel will
be hand picked out; copper
will be hand~picked
out;
zinc will
be hand picked out.
Thence
the material will be crushed
to remove any
mechanically attached magnetic
iron,
thence over
a screen
to remove on some occasions sand,
thence over
a mag-
netic separator to remove magnetic iron, into
a storage
box for storage prior to charging to the furnaces.”
(R. 451—52).
Mr. Scriminger further testified that of the approximately
6,000,000 pounds of scrap per month received by Respondent,
600,000
pounds
is discarded or otherwise not charged
to
the furnaces as
a result of contaminant
removal procedures.
(R.
453-55).
Mr.
Scrimrninger stated that potential smoke producing material
is charged
to
the furnace
slowly
and
smothered
with
clean borings
to entrap
the potential
smoke i~the melt,
all
allegedly
in an effort
to reduce
emissions.
(R. 465).
Mr.
Daniel
M.
Moenich,
Respondent’s President,
testified,
as
regards
thr quality of scrap,
as follows:
“MR.
SNEIDER:
Q
Referring to the Taylor Street
operation, what,
if any,
reasons
do you have for the
unprofitability of the Taylor Street operation?
A
Part
--
Part of the unprofitability,
a large
part of it today
is planned.
We
--
Until
we have our
pollution control
equipment installed and operating
properly, we have been restricting
the amount of scrap
that has been charged into the furnaces, and by this
restriction, we eliminate the pollution that may have
been generated
if we were charged to our norma~practice.
—9-
Secondly, we have been by plan again buying
a more
premium grade of
scrap,
one that has less contami-
nants,
a type of scrap that
is much cleaner than
you
would
normally
have
in
an
operation.
The
scrap
in charging into the furnaces does not pollute,
pollute
the air.
Therefore,
this
is th~kind of
scrap that has been directed to
buy.
Q
Would
there
hQ ~nyother
r,easons besides
the two tha~
~
nave just given?
A
There
were
other
reasons
earlier
but
we
have put
a lot of money
into the operation
to make
it much more economical from an equipment standpoint.
Q
As president of Apex,
what plans,
if any
do you have
to correct
this unprofitability?
A
First of all, we have
a high priority on,
on finishing the pollution control equipment that was
designed for the plant.
This pollution control
equipment should be completed by approximately August
1st.
When
it
is completed, we
will
improve our
charging rate.
We will charge more metal
into the
furnace.
We
will
buy
a
different
type
of
scrap
that’s
less costly.
And we will
add
a conveyor which will
improve
the
utilization
of
our
furnace
equipment.
Now, the conveyor will
be on only one part of the
facility.
(R.
400-402).
Counsel
for
Complainant
cites
EPA
v.
Lindgren
Foundry
Co.
PCB
70-I for the proposition
that standard emission factors may be
used
to show
a prima facie case of violation.
(R.
462).
We agree.
tSee also PCB 71-4,
PCB 71-33 (consolidated)
and PCB 71—297,
PCB 71—335
(consolidated)).
However,
it is also true that substantial
affirmative
evidence that the specific po1lution source involved or the circum-
stances relating to
its operation are such as
to
make said source
substantially different from the elements considered
in the standard
emission factor computation will shift the burden of proof
to the
party proffering
the standard emission factors.
In George
E.
Hoffman
and Sons
v.
Illinois Pollution Control
Board et al., decided
December 28,
1973 by the Illinois Appellate Court, Third District, the
court specifically rejected the contention of the Environmental Protection
Agency that once standard emission factors are introduced,
it then
becomes the burden of the opposing party to prove
it was not violating
the regulation
(3—3.111).
11
—
673
-10-
In the instant cause,
Respondent has introduced substantial
affirmative evidence tending
to show that the standard emission
factors
relied upon by Complainant are not applicable to Re-
spondent
‘~
operation.
Complainant has not met its burden
of proving
the contrary.
While we cannot find conclusively,
from the Record,
that Respondent Charges “high-grade” material
into its furnaces,
evidence that Responcu~tcharges “low-grade” material
is almost
totally lacking.
Complainant’s
final
allegation
is
~
Respondent
violated
Section 9(b)
of
the Act.
Respondent admits to
~
“commencement
of the installation of pollution control devices
withou~..
permit
issued
by the State of Illinois.”
(R.
5).
However, Respono~~-
argues that it was forced
to
install
the pollution control equipment
by action of the Chicago Department of Environmental
Control which
body exercises concurrent jurisdiction with Complainant over Respondent.
Respondent
alleges that it complied with the requirements
of the
Act by repeatedly filing application for construction permits
for
installation of what proved
to be
a successful
plan and that Complainant
on each occasion arbitrarily and without justification
refused to issue
the requested permits— this, notwithstanding the fact that the Chicago
Department
of Environmental
Control had granted construction permits
to Respondent for the same pollution control
program.
Mr. William
C.
Shirley, Respondent’s Director of Engineering
since 1968,
testified
to his efforts,
on behalf of Respondent,
to
obtain construction permits from the Chicago and state authorities.
(10/18/73
R.
9-14).
Mr.
Shirley stated that he began the design of
the subject pollution control
equipment
irr 1968.
He testified that,
in coordination with the Chicago Department of Environmental
Control,
he developed
a very detailed control program which was subsequently
approved and accepted by the Chicago body.
(10/18/73
R.
10).
As
regards
Mr.
Shirley’s dealings with Complainant, Respondent’s Exhibit
#8 was admitted and stipulated to by Complainant
in the interest of
saving time.
(10/18/73
R.
13).
Respondent’s Exhibit
#8 is
a si~-page log detailing Respondent’s
correspondent with Complainant coverin:~ the period from September
1, l971~
to January 5,
1973.
It is noted that although Complainant stipulated
to the admission of the log, Complainant did not stipulate
to
any
conclusions stated therein.
An examination of the fifty-three
(53) entries
in the log satisfies
this Board that Respondent’s
inability to obtain the requisite con-
struction permits
from Complainant was not due to intent or negligence
attributable to Respondent.
Respondent was already committed to
a
$400,000 control
program with the Chicago authorities,
and stack test~
has
proven that program successful.
(R.
402,403).
ii
—
674
-11-
We cannot perceive that Respondent had anything to gain
from the lengthy negotiations
it carried on with Complainant.
It appears
that Respondent’s control program,being
a major
and complex undertaking,
simply required
a great deal
of time
to work through Complainant’s application procedures.
Com-
plainant offered no evidence on
this point.
Respondent cites
to us
Southern
Illinois Asphalt Compan~y,
Inc.
v.
Environmental
Protection Agençy,
303 N.E. 2d 606 (1973),
allegedly for the proposition that
a Section
9(b) violation
must be intentional.
Respondent has misconstrued the Court’s
holding and,
in any event,
the cited decision
is not on
point.
We find,
therefore,
that Respondent has violated Section
9(b)
of the Act.
However,
we have sympathy for Respondent’s
plight
-
having
made
commitments
to
the Chicago Department of
Pollution Control
on one side,
and facing a protracted application
procedure with Complainant on
the other.
On the basL of the
testimony presented and Respondent’s Exhibit #8,
this Board
is
satisfied that Respondent proceeded in good faith through the
application procedure and that no purpose would now be served
by assessment of a penalty— especially,
as noted
above, where the
control
program
proved
successful.
In
summary,
Complainant
admits
it
has
not
established
a
Section 9(a)
violation; we find that Complainant failed to meet
its burden
of proof as regards the Rule 3-3.111
allegations
-
particularly
in view of Respondent’s Exhibit #10 and the testimony
pertinent thereto; and we find Respondent has violated Section
9(b), for which no penalty will
be assessed.
We feel
that some of’ the evidence proffered by Complainant
tends
to show violation of Rule 3-3.111.
However, this Board
cannot enter decisions on feelings.
Complainant must prove its
case.
This Opinion constitutes the findings of fact and conclusions
of
law
of
the
Board.
IT
IS
THE ORDER of the Pollution Control
Board
that:
1.
All
charges against Respondent relating to alleged
violations of Section 9(a)~-ofthe Environmental
Protection Act
and Rule 3—3.111 of the Rules and Regulations
Governing the Control
of Air Pollution are dismissed.
2.
Respondent
is
found to have violated Section
9(b) of
the Environmental
Protection Act for which no
penalty will
be
assessed due to mitigating circumstances.
11—675
-12—
I,
Christan
L.
Moffett,
Clerk of the Illinois Pollution
Control Board,
certify that the above Opinion and Order was
adopted
on this
c~
.~?
~“
day of
~-c~
~
,
1974
by
a vote of
~
~
~
Ii
—676
